High Court · 2025 on 21 Aug 2025

Judgment

1. Heard Sri Arjun Singh Somvanshi, learned counsel for the appellant no.1, learned A.G.A. for the State and perused the record. Sri

2. Before proceeding, it would be apt to indicate that the instant appeal has already been dismissed as abated so far as it relates to the appellant no.2/Chhotey S/o Laxman, vide order dated

21.04.2025.

3. The instant Criminal Appeal under Section 374(2) Cr.P.C. has been filed by the appellant no.1, challenging the judgment and order dated 05.09.2009 passed by the learned Additional Sessions Judge/F.T.C. No.7, Hardoi in Session Trial No. 185 of 2005, arising out of Case Crime No.209/2003, Police Station - Police Station , District - Hardoiunder Sections 308/34, 323/34, 504, 506 IPC, convicting and sentencing the appellant no.1 under Section 308 IPC to undergo three year of rigorous imprisonment and a fine of Rs.1,000/- each, under Section 323 IPC to undergo one year of simple imprisonment, with default stipulations.

4. The case of prosecution, which appears from the record, is to the effect that on 09.12.2003, a written report (Ex.Ka.1) was submitted Page No. 2 of 21 by Sone Lal S/o Gyadeen, Village - Bhadar, Police Station- Harpalpur, District - Hardoi making allegations against the accused-appellant/Anant Ram and Chhotey and according to the same, in an altercation which occurred on spur of moment and without premeditation of mind the appellant no.1/Anant Ram and the appellant no.2/Chhotey, having armed with lathi and farsa respectively and Ram Mohan S/o Indal armed with kulhari hurled abuses and assaulted the informant as also his brother Data Ram, Tota Ram and his wife Munni Devi.

Based upon the same the FIR (Ex.Ka.8) was lodged as Case Crime No. 209 of 2003, under Sections 324, 323, 504, 506 IPC. After the aforesaid, injured persons were examined on Primary Health Centre, Harpalpur, Hardoi. The injury reports all the injured(s) (Ex.Ka.2 to 5) and X-Ray report (Ex.Ka.6) of Sone Lal as also supplementary injury report (Ex.Ka.7) and site plan (Ex.Ka.11), the statements of the concerned persons were filed along with charge- sheet (Ex.Ka.10) under Sections 308, 325, 323, 504, 506 IPC.

6. Taking note of the injuries sustained as also the offense indicated in the charge-sheet, the Magistrate committed the case to the Court of Sessions wherein it was registered as Session Trial No. 185 of 2005 and the charges were framed against the accused/ appellant no.1 by the trial Court. The accused denied the charges and claimed trial.

7. To establish/prove the case, the prosecution examined Sonelal (P.W.1), Data Ram (P.W.2), Tota Ram (P.W.3), who proved the story of prosecution including the FIR,, Dr. Ram Bharose Pandey (P.W.4) and Dr. S.K. Rastogi (P.W.6), who proved the injury report(s) of the injured and X-Ray report, SI Sohan Lal Pushkar (P.W.5) and S.I. Sukh Ram Gautam (P.W.7) and SI Kavindra Mohan Gupta (P.W.8), who proved the documentary evidence submitted alongwith the charge sheet. Page No. 3 of 21

8. That after closing of the evidence, statements of accused/ appellant no.1 was recorded by the trial court, after explaining the entire evidence and other circumstances, in which the appellant no.1 denied the prosecution story and the entire prosecution story was said to be wrong and concocted.

9. Thereafter, the learned trial court, after considering the material brought on record including the injuries sustained by the injures as also the statements of witnesses of fact including the injured witnesses, passed the judgment of conviction and awarded sentence as indicated above.

10. Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction, the accused/appellant no.1 has preferred the present appeal.

11. Learned counsel for the appellant no.1 submits that the accused- appellant no.1 has not been convicted previously for any offence and he is the first time offender. The learned counsel at the outset submits that he is not challenging the impugned judgment and order of conviction and is confining submission in the appeal only with respect to the order of sentence.

12. Learned counsel for accused-appellant no.1 submits that in view of the aforesaid facts and circumstances, including the fact that the accused-appellant no.1 has not been convicted previously for any offence, the trial court ought to have acquitted the appellant no.1 for the offence mentioned above and invoked the provisions of The Probation of Offenders Act, 1958 (hereinafter referred to as 'Act, 1958') and in not doing so, the trial court erred in law and fact both.

13. The Trial Court did neither invoke the provisions of the Act, 1958 nor the provisions of Section 360 Cr.P.C. while sentencing the accused-appellant no.1. The Trial Court has not given any special reason in the impugned judgment and order of conviction and sentence for not giving the benefit of provisions of Section 360 Cr.P.C. or the provisions of Act, 1958. Page No. 4 of 21

14. Learned counsel for the accused-appellant no.1 submits that to that extent, the impugned judgment and order suffers from serious illegality being violative of provisions of section 361 Cr.P.C. and, therefore, it cannot be sustained.

15. Section 361 of the Code is required to be applied with or without the beneficial provisions i.e. Section 360 of the Code or provisions of the Act, 1958. If the Court chooses not to apply either of these provisions, it is required to give special reasons for not applying the beneficial provision in case the accused offender otherwise is eligible for provisions of Section 360 of the Code or Section 3 or 4 of the Act, 1958.

16. The accused-appellant no.1 has statutory right for claiming the benefit of beneficial legislation i.e. the provisions of the Act, 1958 and the learned Trial Court was under a duty to consider the applicability of Section 360 Cr.P.C. or Sections 3 or 4 of the Act, 1958 as mandated under Section 361 Cr.P.C. If the provisions of Section 360 Cr.P.C. or provisions of the Act, 1958 were not applied, then the learned Trial Court should have recorded reasons for the same.

17. Learned counsel for the appellant no.1 submitted that the State of Uttar Pradesh has its own local law of probation i.e. Uttar Pradesh First Offenders Probation Act, 1938. He further submitted that the Probation of Offenders Act, 1958 (Central Act) is also applicable in the State of Uttar Pradesh as held by Hon'ble the Supreme Court in the case of Mohd. Hashim Vs. State of U.P.; (2017) 2 SCC 198. Thus, learned counsel for the appellant no.1 submitted that it is upon the discretion of the Court to grant benefits in either of the Acts.

18. Learned counsel for the appellant no.1 further submitted that he Page No. 5 of 21 does not want to press the appeal on merits. He has submitted that the incident took place about 22 years ago and there is no further criminal antecedent of the appellant no.1. The delay in trial deprives the right of the appellant no.1 of speedy trial and they may be given benefit of first offender and they may be extended the benefit of Probation of Offenders Act, 1958 (hereinafter referred as the ‘Act of 1958’). He further submitted that appellant no.1 is first time offender and are not previously convicted in any case. He further submitted that it is the Court which may consider the benefit of Section 4 of the Act of 1958 to the accused-appellant no.1.

19. Learned A.G.A., on the other hand, opposed the appeal and has submitted that there is no material irregularity or illegality committed by the court below and keeping in view the evidence on record, accused-appellant no.1 has been rightly convicted.

20. Learned A.G.A. appearing for the State does not dispute the fact that accused-appellant no.1 is the first time offender and were not previously convicted in any other case. He also submits that in view of the expressed provisions of Section 361 Cr.P.C., considering the facts and circumstances, nature of the offence, the character of the accused-appellant no.1 and particularly, the time period which has lapsed since the date of incident, the benefit of Section 4 of the Act, 1958 can be granted in this case.

21. Learned A.G.A. further states that the benefit of Section 4 of the Act of 1958 could be extended to the accused-appellant no.1 on certain stipulations as specified in Section 4 of the Act of 1958.

22. After considering the arguments advanced by the parties and after perusal of the material available on record, this Court finds that except apart the merits of the case, so far as the prayer of learned counsel for the appellant no.1 for providing benefits of Section 4 of Page No. 6 of 21 the Act of 1958 is concerned, it is essential to discuss the legal position and law propounded in this regard.

23. Sections 3 and 4 of the Probation of Offenders Act, 1958 are extracted hereunder: "3. Power of court to release certain offenders after admonition.- "Where any person is found guilty of having committed an offence punishable under Section 379 or Section 380 or Section 381 or Section 404 or Section 420 of the Indian Penal Code, (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal code, or any other law, and no previous conviction is proved against him and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence, and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4 release him after due admonition. Explanation.-For the purposes of this Section, previous conviction against a person shall include any previous order made against him under this Section or Section 4.

4. Power of Court to release certain offenders on probation of good conduct.- (1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the Court may direct, and in the meantime to keep the peace and be of good behaviour: Provided that the Court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the Court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond."

24. That Hon'ble Supreme Court in Ratan Lal vs State of Punjab, AIR 1965 SC 444, while discussing the purpose and object of Probation of Offenders Act, 1958, has observed in para no. 4, as follows:- Page No. 7 of 21 "4. The Act is a milestone in the progress of the modern liberal trend of reform in the field of penology. It is the result of the recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him. Broadly stated the Act distinguishes offenders below 21 years of age and those above that age, and offenders who are guilty of having committed an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence. While in the case of offenders who are above the age of 21 years, absolute discretion is given to the court to release them after admonition or on probation of good conduct, subject to the condition laid down in the appropriate provision of the Act, in the case of offenders below the age of 21 years an injunction is issued to the court not to sentence them to imprisonment unless it is satisfied that having regard to the circumstances of the case, including the nature of the offence and the character of the offenders, it is not desirable to deal with them under Ss. 3 and 4 of the Act."

25. Further, the Hon'ble Supreme Court in the case of Ved Prakash vs